E-Filed Document Dec 16 2014 18:57:22 2014-CP-00558 Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI BARRON BORDEN APPELLANT VS. NO. 2014-CP-00558 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 3599 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................. ii ISSUES.................................................................... 1 STATEMENT OF FACTS.................................................... 1 SUMMARY OF ARGUMENT................................................. 2 ARGUMENT............................................................... 4 PROPOSITION I. THE TRIAL COURT DID NOT ERR IN TREATING BARRON S PETITION AS A MOTION FOR POST- CONVICTION COLLATERAL RELIEF AND DISMISSING IT AS A SUCCESSIVE WRIT............ 4 PROPOSITION II. THE STATE S PROSECUTION OF BORDEN FOR CAPITAL MURDER DOES NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE. THE CIRCUIT COURT DID NOT ERR IN ACCEPTING BORDEN S GUILTY PLEA TO CAPITAL MURDER............... 6 PROPOSITION III. BORDEN RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL......................................... 7 CONCLUSION............................................................. 8 CERTIFICATE OF SERVICE................................................ 9 i
TABLE OF AUTHORITIES FEDERAL CASES Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)................... 6 Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).............. 3, 5, 6 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)....... 7 U.S. v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)...................... 6, 7 U.S. v. Pugh, No. CRIM. 108CR130 WJGRHW, 2009 WL 2928757 (S.D. Miss. Sept. 11, 2009).......................................................................... 2 U.S. v. Whitmore, 386 F. App'x 464 (5th Cir. 2010).................................. 2 STATE CASES Bankston v. State, 236 So. 2d 757, 760 (Miss. 1970)............................. 3, 6, 7 Borden v. State, 122 So. 3d 818 (Miss. Ct. App. 2013)................................ 2 Evans v. State, 725 So. 2d 613, 659 (Miss. 1997)................................... 6 Evans v. State, 115 So. 3d 879, 881 (Miss. Ct. App. 2013)............................ 5 McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)................................ 7 Powell v. State, 806 So.2d 1069, 1074 (Miss. 2001).................................. 5 Pugh v. State, 101 So.3d 682 (Miss. Ct. App. 2012).................................. 1 Robinson v. State, 19 So.3d 140, 142 (Miss. Ct. App. 2009)........................... 4 Rowland v. State, 42 So.3d 503, 506 (Miss. 2010)................................... 4 Rowland v. State, 98 So.3d 1032, 1037 (Miss. 2012)................................ 3,5 State v. Santiago, 773 So.2d 921, 923 (Miss. 2000).................................. 4 Stovall v. State, 873 So.2d 1056, 1058 (Miss. Ct. App. 2004).......................... 5 ii
White v. State, 59 So. 3d 633, 635 (Miss. Ct. App. 2011).............................. 4 Wicker v. State, 16 So.3d 706, 708 (Miss. Ct. App. 2009).......................... 4 Williams v. State, 872 So.2d 711, 712 (Miss. Ct. App. 2004).......................... 3 STATE STATUTES Miss. Code Ann. 99 39 11(2) (Supp. 2010)...................................... 4 Miss. Code Ann. 99 39 23(6) (Supp. 2010).................................... 2, 4 STATE RULES Mississippi Rule of Civil Procedure 60(b)(6)....................................... 4 OTHER 22 C.J.S. Criminal Law s 296................................................... 6 iii
IN THE SUPREME COURT OF MISSISSIPPI BARRON BORDEN APPELLANT VS. NO. 2014-CP-00558 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE Barron Borden appeals the dismissal of his Request for Relief from Judgement Under 60(b)(6) Motion. The Circuit Court of Jackson County determined that Borden's petition was a motion for post-conviction collateral relief and was procedurally barred under Mississippi Code Annotated section 99-39 23(6). Aggrieved, Borden appealed raising the following issues, (stated verbatim): ISSUES I. Whether the circuit court erred by dismissing the motion for Relief from Judgment Under Rule 60(b)(6), although the motion was treated as motion for post-conviction relief, and not addressing the claim bases on a fundamental right of double jeopardy. II. III. Whether the circuit court erred by a successive prosecution violating the Double Jeopardy Clause of the V Amendment of the U.S. Constitution and Mississippi Constitution Article Section 22. Whether the circuit court erred by accepting a plea of guilty on a charge which the state can not constitutionally prosecute, ineffective assistance of counsel for the mistaken advice to plead guilty and not addressing the double jeopardy defense. STATEMENT OF FACTS Barron Borden, Eddie Pugh and Torenda Whitmore were indicted in the Circuit Court of Jackson County for the October 8, 2008 capital murder of Kelsey McCoy with the underlying felony of kidnapping, the aggravated assault of Rahman Mogilles, and the third-degree arson of 1
Mogilles s vehicle. CP p. 215. Pugh went to trial in the Jackson County Circuit Court and was convicted on all three counts; this Court affirmed the conviction. Pugh v. State, 101 So.3d 682 (Miss. Ct. App. 2012). On January 6, 2011, Borden entered a guilty plea to capital murder and an Alford plea to third-degree arson. The Jackson County Circuit Court sentenced Borden to life without parole for the capital murder and three years on the arson. CP p. 81. Prior to entering his guilty plea in circuit court, Borden and Pugh were tried and convicted in the United States District Court for the Southern District of Mississippi, of the federal offenses of conspiring to commit kidnapping; kidnapping and aiding and abetting the kidnapping of McCoy; kidnapping and aiding and abetting the kidnapping of Mogilles; felon in possession of a firearm; and possession of a firearm in connection with a crime of violence on October 8, 2008. U.S. v. Pugh, No. CRIM. 108CR130WJGRHW, 2009 WL 2928757, at *1 (S.D. Miss. Sept. 11, 2009) aff'd sub nom. U.S. v. Whitmore, 386 F. App'x 464 (5th Cir. 2010). Borden filed his first motion for post-conviction relief on January 24, 2012, which the circuit court denied by order dated August 2, 2012. CP p. 81, 82. This Court affirmed the denial of relief. Borden v. State, 122 So. 3d 818 (Miss. Ct. App. 2013), reh'g denied (Jan. 21, 2014). Borden filed the subject Request for Relief Under 60(b)(6) Motion on February 14, 2014, claiming a double jeopardy violation. The Jackson County Circuit Court treated the motion as a motion for post-conviction and dismissed it, by order dated April 1, 2014, as being not well taken and successive writ barred pursuant to Miss. Code Ann. 99-39-23(6). CP p. 222, 223. Borden appealed. SUMMARY OF ARGUMENT The order dismissing Barron Borden s second motion for post-conviction collateral relief should be affirmed. The Circuit Court properly treated Borden s Request for Relief Under Civil 2
Rule 60(b)(6) motion as a motion for post-conviction collateral relief (PCR) and properly dismissed it as being a successive writ because this was Borden s second motion for PCR. Successive motions are generally barred from appellate review. Miss. Code Ann. 99 39 23(6) (Supp. 2010). White v. State, 59 So. 3d 633, 635 (Miss. Ct. App. 2011). While claims of violations of fundamental rights are exempt from the procedural bars of the Uniform Post Conviction- Collateral Relief Act, "the mere assertion of a fundamental constitutional right violation" does not trigger the exception. See Rowland v. State, 42 So.3d 503, 506 ( 9) (Miss. 2010). There must appear to be some truth in the claim to trigger the exception and there is none in the case at bar. When a defendant in a single act violates the peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct offences.' See Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Hence, Borden failed to raise a threshold showing of a double jeopardy violation. The State of Mississippi s prosecution of Borden for the capital murder of Kelsey McCoy after being convicted in federal court for the same kidnapping does not violate the federal or state prohibition against double jeopardy. Where the same transaction constitutes a crime under the laws of the United States and also under the laws of the state, an accused may be punished for both crimes, and an acquittal or a conviction in the court of either is no bar to an indictment in the other, in the absence of statutory provisions to the contrary. Bankston v. State, 236 So. 2d 757, 760 (Miss. 1970). Borden s claim of ineffective assistance of counsel for failure to advise him of the double jeopardy violation is without merit. If there was no double jeopardy violation, then Borden s trial counsel was not deficient in advising him to plead guilty to capital murder and in failing to advise him of the non-existent double jeopardy violation. 3
ARGUMENT In considering the dismissal of a post-conviction relief motion, we review the trial court's findings of fact for clear error. Williams v. State, 872 So.2d 711, 712 ( 2) (Miss. Ct. App. 2004). When reviewing questions of law, our standard is de novo. Id. The trial court may summarily dismiss a PCR motion where it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.] Miss. Code Ann. 99 39 11(2) (Supp. 2010). See also State v. Santiago, 773 So.2d 921, 923 24 ( 11) (Miss. 2000). This court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right. Robinson v. State, 19 So.3d 140, 142 ( 6) (Miss. Ct. App. 2009). PROPOSITION I. The trial court did not err in treating Barron s pleading as a motion for post-conviction collateral relief and dismissing it as a successive writ. Borden asserts on appeal that the circuit court erred in dismissing his request for relief from the judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(6) motion as being a successive writ and erred in not considering the merits of his double jeopardy argument. Under the Uniform Post Conviction Collateral Relief Act, Mississippi Code Annotated section 99-39-23(6) provides that any ruling on a motion is a final judgment, is conclusive unless reversed, and is a bar to a second or successive motion. However, the Mississippi Supreme Court has held unequivocally that errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA. Rowland v. State, 42 So.3d 503, 507 (Miss.2010). The right to be free from double jeopardy is a fundamental right. Id. Borden filed his first PCR motion on January 24, 2012, claiming his counsel's assistance was ineffective; his guilty plea was not voluntary, knowing, and intelligent; he was legally 4
innocent; the factual basis did not sufficiently support guilty plea; and the factual basis did not support his Alford plea. The circuit court denied the motion as being without merit and this Court affirmed. Borden v. State, 122 So. 3d 818 (Miss. Ct. App. 2013), reh'g denied (Jan. 21, 2014). Borden filed this his second PCR on February 14, 2014. CP p. 204-221. While errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA,"the mere assertion of a constitutional right violation" does not trigger the exception. Wicker v. State, 16 So.3d 706, 708 ( 5)(Miss. Ct. App. 2009); Stovall v. State, 873 So.2d 1056, 1058( 7) (Miss. Ct. App. 2004). To find an exception to the successive-writ bar, "[t]here must at least appear to be some basis for the truth of the claim" of a fundamental-constitutional-rights violation. Stovall v. State, 873 So.2d 1056, 1058 ( 7) (Miss. Ct. App. 2004). Evans v. State, 115 So. 3d 879, 881 (Miss. Ct. App. 2013) cert. dismissed, 121 So. 3d 918 (Miss. 2013) and cert. dismissed, 123 So. 3d 450 (Miss. 2013). Borden s double jeopardy claim is totally without merit, as more fully argued by the state in the next issue. The record before the circuit court was clearly sufficient to see Barron was not subjected to a double jeopardy violation and therefore the claim could be summarily dismissed as a successive writ. When a defendant in a single act violates the peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct offences.' See Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). Borden failed to raise a threshold showing of a double jeopardy violation because the single act at issue, the kidnapping of McCoy, was against the laws of the United States and against the laws of the State of Mississippi. This issue is without merit. 5
PROPOSITION II. The State s prosecution of Borden for capital murder does not violate the Double Jeopardy Clause. The circuit court did not err in accepting Borden s guilty plea to capital murder. Double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. Rowland v. State, 98 So.3d 1032, 1037 ( 10) (Miss. 2012) (quoting Powell v. State, 806 So.2d 1069, 1074 ( 8) (Miss. 2001)). Borden asserts the Double Jeopardy Clause of the federal constitution and the Mississippi Constitution bar the State of Mississippi from prosecuting him for capital murder while in the commission of a kidnapping following his conviction to federal kidnapping charges. Borden s constitutional claim of double jeopardy is unsuccessful in light of Bankston v. State, 236 So.2d 757 (Miss.1970), and the dual sovereignty doctrine. See U.S. v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), reh'd denied, 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258 (1959); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The United States Supreme Court has held principles of dual sovereignty will not bar a subsequent state prosecution following a federal conviction. There is no question that under the Federal Constitution a State may prosecute a defendant for conduct which was already charged in either a federal indictment or an indictment from another state because of the concept of dual sovereignty. U.S. v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offences. Heath, 474 U.S. at 88, 106 S.Ct. at 437, 88 L.Ed.2d at 394. 6
Evans v. State, 725 So. 2d 613, 659 (Miss. 1997) (citations omitted). In Bankston v. State, the Mississippi Supreme Court, following principles of dual sovereignty, held that a prior federal conviction for bank robbery did not bar a subsequent state prosecution for armed robbery. Where the same transaction constitutes a crime under the laws of the United States and also under the laws of the state, accused may be punished for both crimes, and an acquittal or a conviction in the court of either is no bar to an indictment in the other, in the absence of statutory provisions to the contrary. 22 C.J.S. Criminal Law s 296 d (1961); and cases cited. (Id. at 517, 170 So.2d at 430" Bankston v. State, 236 So. 2d 757, 760 (Miss. 1970). When you have two sovereigns, such as the U.S. government which derives its power from the U.S. Constitution and federal statutes, and the State of Mississippi, which derives its power from the Mississippi Constitution and state statutes, and each has enacted a law prohibiting kidnapping, there is no double jeopardy when both sovereigns prosecute a defendant for kidnapping under its respective law. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). Under the long-standing doctrine of dual sovereignty announced in United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922), and adhered to by this Court in Bankston v. State, 236 So.2d 757, Barron Borden s claim of a double jeopardy violation totally fails. PROPOSITION III. Borden received effective assistance of counsel. Borden contends his attorney was deficient in failing to advise him that double jeopardy preludes the State of Mississippi from prosecuting him for the same charges for which he was convicted in federal court. To prove ineffective assistance of counsel, Borden must show: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests 7
with Borden to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, [t]he defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. As previously argued, a double jeopardy defense did not exist. Thus, counsel could not have been deficient in failing to advise Borden of a double jeopardy defense and Borden could not have suffered any prejudice as a result of counsel s failure to advise him of such. There is no merit to this issue. CONCLUSION Based upon these arguments presented herein as supported by the rulings of the trial court and record on appeal, the State would ask this reviewing Court to affirm the order of the Circuit Court of Jackson County dismissing Barron Borden s request for relief and find Borden s double jeopardy claim without merit. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 3599 8
CERTIFICATE OF SERVICE I, LISA L. BLOUNT, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 16th day of December, 2014. Honorable Dale Harkey Circuit Court Judge P.O. Box 998 Pascagoula, MS 39568-0998 Honorable Anthony Lawrence, III District Attorney P.O. Box 1756 Pascagoula, MS 39568-1756 Barron Borden, Pro Se, #164982 S.M.C.I.-II C-1, #22 P.O. Box 1419 Leakesville, MS 39451 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 lblou@ago.state.ms.us /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL 9